Chipping Away The 5th Amendment

I expend a lot of space on this blog talking about the 4th Amendment. Now it’s time to talk about the 5th Amendment, courtesy of the recent Supreme Court ruling in Salinas v Texas:

Salinas’ “Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” Justice Samuel Alito said. “It has long been settled that the privilege `generally is not self-executing’ and that a witness who desires its protection `must claim it.'”

As the Florida Innocence Project notes, “Of the people exonerated by DNA testing, approximately 25% falsely confessed.” Many false confessions come from harsh interrogation techniques, such as threatening a suspect’s family or lying to a witness during a lengthy interrogation. Now thanks to the Supreme Court, if a defendant does not give into such tactics pre-Miranda and says nothing, the silence can be used to nullify the defendant’s right to remain silent. Or to put it another way, as long as a suspect doesn’t invoke his rights (or is unaware of his rights), the “involuntary” exercise of his rights will be used against him.

One Response to “Chipping Away The 5th Amendment”

This is bad on two major fronts. First, is the one you pointed out. The card are stacked heavily in the favor of the police because they practice interrogation techniques and can push the person being questioned to whatever direction they choose. When someone doesn’t feel comfortable, they stop speaking and that can be used against them. It’s absurd.

The second point, which I think is an underestimated outcome, is that people will some cooperating with police. Due to this decision, nobody should even talk to police because if they get sick of getting interrogated and want to go home, those actions could be used against them. We should be encouraged police cooperation to help solve crimes, not punishing it.